August 29, 2019

11th Circuit says that one unsolicited text does not confer standing in TCPA action

On August 28, 2019, the US Court of Appeals for the Eleventh Circuit reversed a district court ruling that had allowed a plaintiff’s claim under the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(A)(iii), where the plaintiff, the former client of a Florida attorney, had received a single multimedia text message from the attorney advertising discounted legal services. 

The plaintiff initially filed a putative class action in US District Court for the Southern District of Florida, on behalf of himself and former clients of the law firm who had received similar unsolicited text messages.  The attorney, Alex Hanna, moved to dismiss the complaint for lack of standing.  The court ruled in favor of the plaintiff, and at the same time permitted an interlocutory appeal to allow the Eleventh Circuit to weigh in on the question whether receipt of a single unsolicited text message sent in violation of a federal statute is a concrete injury in fact sufficient to establish standing to sue in federal court.

In its discussion, the court identified the three elements required to establish standing under Article III of the Constitution:  (1) an injury in fact that is concrete, and not hypothetical or speculative; (2) that is fairly traceable to the alleged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.  Applying the standard articulated in Spokeo v. Robins, 136 S. Ct. 1540 (2016), to the first element, the court examined the plaintiff’s allegation that receiving the one text message caused him to waste his time answering, made his phone unavailable for other pursuits at the same time, and resulted in an invasion of the plaintiff’s “privacy and right to enjoy the full utility of his cellular device.” In the court’s view, the plaintiff’s injury was distinguishable from the harm alleged in Eleventh Circuit precedents that held a junk fax sufficient because it rendered the plaintiff’s fax machine temporarily unavailable for receiving legitimate business messages, and wasted paper, ink and toner, Palm Beach Golf Center–Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1252 (11th Cir. 2015). In this case, the plaintiff had not alleged with particularity either the time the cellphone was unavailable for other uses, if any, or other costs or lost opportunities for use. 

Although acknowledging that the defendant’s alleged action was “undisputably a violation of the [TCPA] as interpreted by the FCC,” the court looked to the judgment of Congress as demonstrated in legislative findings, and concluded that the receipt of a single text message is qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA, particularly since a cellphone can be silenced, and is carried outside the home, and hence does not pose the same privacy and nuisance issues.  The court reasoned, moreover, that since Congress has been silent on the issue since the advent of text messaging, text messages need not be viewed in the same light as the telephone calls addressed by the statute.  The court rounded out its analysis with a review of traditional torts, and, finding none applicable, concluded that neither history nor the judgment of Congress support a finding of concrete injury in this case:  the plaintiff’s “allegations of a brief, consequential annoyance are categorically distinct from those kinds of real but intangible harms” like a telephone ring shattering the domestic peace.

In holding that the plaintiff’s allegations did not state a concrete harm that meets the injury-in-fact requirement of Article III, the court acknowledged a split between its interpretation and that of the Ninth Circuit, where the court held that the receipt of two unsolicited text messages did constitute an injury in fact sufficient to confer standing, Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017).   And finally, the court took pains to emphasize that its assessment was qualitative, not quantitative, measuring how concrete and real the alleged harm is.

The court thus reversed the district court’s decision finding the plaintiff to have standing, and remanded for dismissal of the complaint without prejudice.